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The U.S. Supreme Court is set to hear the case of a Pennsylvania woman whose home, allegedly situated on an ancestral burial ground, was deemed public property by the local municipality.

The court granted Rose Mary Knick’s certiorari petition March 5, agreeing to weigh in on the constitutionality of the state-litigation requirement in takings cases, which bars property owners from filing takings claims in federal court until they exhaust state court remedies, derived from the 1985 high court ruling in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City.

Knick’s troubles started when a nearby Lackawanna County family claimed their ancestors were interred under her property. Knick, a Scott Township resident, argued the family’s claims were untrue, but a local ordinance says the township has the right to come to Knick’s property to investigate. What started out as an isolated dispute then erupted into a full-blown federal court case over the constitutionality of the local cemetery law.

In November she asked the justices to vacate a July 5 ruling from the U.S. Court of Appeals for the Third Circuit upholding the dismissal of her constitutional claims.

James David Breemer, of the business-focused public interest law firm Pacific Legal Foundation in Sacramento, represents Knick.

“We are very pleased that the court is going to consider overruling the bizarre Williamson County rules that prevent property owners from having prompt and reasonable access to the courts when their land is invaded without compensation,” Breemer said March 6.

The township’s lawyer, Thomas A. Specht of Marshall Dennehey Warner Coleman & Goggin’s Scranton office, did not respond to a call seeking comment.

Knick claimed that the Scott Township ordinance requiring owners of private property with cemeteries on-site to open their grounds to the public violates the Constitution by permitting unrestrained searches of private property in violation of the Fourth Amendment, and that it takes private property without compensation, violating the Fifth Amendment.

But while the case presented potentially impactful constitutional questions, it was ultimately dismissed on procedural grounds by a federal judge in the Middle District of Pennsylvania, a decision upheld by the Third Circuit.

“The township’s ordinance is extraordinary and constitutionally suspect,” Third Circuit Chief Judge D. Brooks Smith wrote in the court’s July opinion. “However, important justiciability considerations preclude us from reaching the merits. Because Knick concedes that her Fourth Amendment rights were not violated and fails to demonstrate that they imminently will be, Knick lacks standing to advance her Fourth Amendment challenge.”

“And as the district court correctly held,” Smith continued, “Knick’s Fifth Amendment claims are not ripe until she has sought and been denied just compensation using Pennsylvania’s inverse-condemnation procedures.”

While Knick claimed the search of her property by a township official infringed on her rights, the district court held it was lawful. The court held that because the code enforcement officer inspected an open field and not Knick’s house, no harm was done.

The question then, Smith said, turned to whether she could pursue the case even though her own rights were not violated.

“Knick makes no reasonable allegation that her Fourth Amendment rights (or anyone else’s) were, or will imminently be, violated,” Smith said, “The fact that Knick challenges the ordinance on its face does not relieve her from that fundamental burden.”

P.J. D'Annunzio

Reporter at the Legal Intelligencer covering public corruption, federal courts, and breaking news.

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